Full Title Name: Canadian Animal Anti-Cruelty Legislation

This paper examines the substance and history of animal anti-cruelty law in Canada. In doing so, it discusses the controversy surrounding the last amendments to the existing law (Bill C-50) introduced in parliament last year.

Generally Canada is considered a socially progressive country. However, its animal cruelty statute is uncharacteristically antiquated. Despite its antiquated animal cruelty statutes, there have been numerous attempts since 2000 to revise them. In late November 2005 the ruling minority government in Canada received a vote of no confidence forcing to the wayside much legislation, including the fifth attempt since 1999 to amend the Canadian animal anti-cruelty laws that were promulgated well over a century ago. This paper examines the animal anti-cruelty movement in Canada , the current law and the most recent proposed amendments, and seeks to determine why the proposed law failed.

I. Overview of animal movement in Canada

The Canadian animal anti-cruelty movement has a long history dating back to the early 1800s. After the English passed first anti-cruelty statute, the Martin’s Act in 1822, [2] Nova Scotia passed the first anti-cruelty legislation in North American in that same year. [3] The English founded the Society for the Prevention of Cruelty to Animals (SPCA) in 1824, and the first Canada chapter was founded in 1869 in Montreal . [4] Hughes and Meyer assert that the early animal humane societies focused on treatment and conditions of working animals and blood sport animals. [5] Therefore, the early focus of the humane societies was toward abuse of the animals, including physical abuse and overuse, as well as the banning of bull fighting and cockfighting. [6]

According to Hughes and Meyer, the social movements of the 1970s were coupled with two movements that went further than the traditional humane societies. Namely, there were two movements with roots that predated the 1960’s cultural revolution: 1) the animal welfare movement and 2) the animal rights movement. [7] The animal welfare movement advocates humane treatment of animals, while the animal rights movement asserts that animals have rights inherent. While the lack of progress on the amendments might be a reflection that Canada is stuck in the 19 th century, there is ample evidence in the mounting pressure to amend the antiquated statutes. This in itself has been brought about by a section of society recognizing that changes need to be made.

II. Current Anti-Cruelty provisions

The current Canadian animal anti-cruelty provisions were first promulgated in 1892. The 1892 version stands today only with minor changes from the 1950s. [8] The Canadian animal anti-cruelty provisions are in sections 444 to 447 of the Criminal Code of Canada. [9]

To truly get a grasp of the Canada anti-cruelty provisions, one must understand that there are two key principles protected by these provisions: 1) animals should not be damaged by third parties because they are property of another; and 2) because animals have the capacity to suffer, they should not have inflicted on them unnecessary cruelty. [10]

The Canadian Criminal Code does not allow humans to inflict “unnecessary” pain to animals. However, it does allow humans to kill animals for lawful purposes, but to do so in ways that minimize pain and suffering. Significantly, the Canadian Criminal Code places the animal anti-cruelty laws under Part XI , Wilful and Forbidden Acts in Respect of Certain Property . Property, precisely defined in the legal world, is the relationship among people with respect to things. Nowadays, however, it typically means any thing over which the rights of possession, use, and enjoyment are exercised. [11] Part XI of the Canadian Criminal Code defines property as “real or personal corporeal property.” [12] Canadian society, consistent with any Western society, treats animals as property. Animals typically are treated as things over which humans can exercise rights of possession, use, and enjoyment in exclusion of other humans. Therefore, animals are property in Canada , and the Criminal Code recognizes this by placing animals under Part XI, which is titled Wilful and Forbidden Acts in Respect of Certain Property .

Canada Criminal Code § 444 provides property protections for owners of cattle. If anyone kills, maims, wounds, poisons or injures cattle, one is guilty of an indictable offence and liable to a prison term of up to five years. Traditionally, cattle have great economic value for North American societies. These animals provide economic sustenance to farmers, through milk production, meat, and leather. Damage to cattle results in direct economic damage to the interested parties. Therefore, Canada Criminal Code § 444 is solely interested in the economic interests of the individual who owns the cattle. The well-being of the cattle for the cattle’s sake is not of any concern in this section.

Canada Criminal Code § 445 provides property protections for owners of “dogs, birds, or animals that are not cattle and are kept for a lawful purpose.” Like Canada Criminal Code § 444, this section provides criminal punishment for those who violate the property rights of another. This section is solely focused on protecting the property interests of the owner, and again is not concerned with the interests of the animal.

Canada Criminal Code § 446 is different, however. While § 444 and § 445 are clearly designed to protect the property interests of the property owner (the owner of the animal), § 446 treats the animal as something more than an inanimate object (i.e. a crops, books, or a building). In these provisions, third parties and owners of the animal are penalized for inflicting unnecessary pain and suffering on the animal. If the animals were being treated as an inanimate object--the typical type of object to be subject to property interests--then the owner would not be penalized for inflicting pain or suffering.

Canada Criminal Code § 446 (1)(a) concerns any offender who “willfully causes . . . unnecessary pain, suffering or injury to an animal or a bird.” Interestingly, § 446(1)(a) also subjects the owner who “willfully permits to be caused unnecessary pain, suffering or injury.” While dealing with the non-owners can be interpreted to protect the property rights of the owner of the animal, subjecting the owner to the same penalties for unnecessary pain, suffering, or injury to the animal does not protect the property rights of the owner. In fact, it removes a few of the sticks from the bundle of rights of the property owner. Here, there is a clear indication that the Canadian Criminal Code is protecting more than simply the property rights of the owner; it is also protecting the rights of the animal to be free from unnecessary pain and suffering from anyone, including the animal’s owner.

Canada Criminal Code § 446(1)(b) further protects animals or birds from damage or injury caused by willful neglect while being transported. Again, this provides a protection for the owner of the animal against property damage by third parties. However, this clause also subjects the owner to the same penalties for the same actions against his own property. Here, there is another indication the Canada Criminal Code is interested in more than simply protecting the property rights of the owner.

Section 446(1)(c) subjects owners or custodians of animals or birds to criminal prosecution for abandoning any animals or birds in distress, or willfully neglecting or failing to provide appropriate “food, water, shelter and care.” Interestingly, this is the first time that we have come across a provision in the Canada Criminal Code that is written solely for the purpose of protecting the animal against the owner or custodian .

Section 446(1)(d) subjects to criminal penalty anyone who “in any manner encourages, aids or assists at the fighting or baiting of animals or birds.” Here even the owners of animals are not allowed to permit fighting or baiting of that animal. Once again it is clear that the property rights of the owner of the animal are not exclusive, that society has retained certain interests in the animal. This provision, while it may have been enacted for the well-being of the animal, also exhibits another concern - the morality of society. Since this is an older provision, it expresses society’s concerns about illegal gambling.

The next provision, § 446(1)(e) protects animals against third parties or the owner from being injected with a poison or harmful drug without reasonable excuse. Once again, it is clear that the animal is being protected from abuse by both owner and third parties. Section 446 (1)(f) provides liability for anyone who is involved with the releasing of captive birds for the purpose of shooting them when they are liberated, and § 446(1)(g) provides liability for the “owner, occupier or person in charge of” such premises.

The sentencing provisions for § 446 violations are listed in § 446(2), which provide that those guilty of any § 446 offenses are “guilty of an offense punishable on summary conviction.” Section 446(3) relates to § 446(1)(a)-(b), and provides a rebuttable presumption of failure “to exercise reasonable care or supervision of an animal or a bird thereby casing it pain, suffering, damage or injury was caused willfully or through willful neglect. One who is found present at the “fighting or bating of animals or birds” is given a rebuttable presumption of guilt for encouraging, aiding or assigning in the fighting or baiting of animals or birds in § 446(4). Section 446(5) empowers the courts to prohibit § 446(1) offenders the right to own, hold in custody, or control an animal or bird for up to two years, and § 446(6) makes such a violation an offense punishable on summary conviction.

The last section provides two provisions against those who maintain cockpits. First, § 447(1), makes it an offence punishable on summary conviction of anyone who “builds, makes, maintains or keeps a cockpit on premises that he owns or occupies, or allows a cockpit to be built, made, maintained or kept on such premises.” Second, § 447(2) states, “A peace officer who finds cocks in a cockpit or on premises where a cockpit is located shall seize them and take them before a justice who shall order them to be destroyed.”

The latter statutes especially make it clear that the Canadian parliament had two principles in mind: 1) the protection of the rights of property owners, and 2) the protection of animals against unnecessary pain and suffering. Therefore, the current provisions of the Canada Criminal Code recognize animals not only as property, but also as living beings that can feel pain and can suffer, and have value in and of themselves to be protected from unnecessary pain and suffering.

III. Five Failed Amendment Attempts Since 1999

Despite these progressive goals of the original enactments, there has been no real substantive change to these laws in over one hundred years. Five amendments have been proposed since 1999 to revamp the animal anti-cruelty provisions in the Canada Criminal Code. However, each time the legislation has failed, primarily due to terminated terms of parliament. Each of the failed proposals has been essentially the same. The amendments all proposed moving the animal anti-cruelty legislation from under Part XI: Wilful and Forbidden Acts in Respect of Certain Property into a new section, Part V.1: Cruelty to Animals . [13] Six years later the status will likely experience the same fate. The most recent amendment proposal will also fail because the minority ruling government received a no-confidence vote and elections will soon be scheduled.

An examination of the most recent attempt (Bill C-50) is instructive. Bill C-50 consists of four clauses. Clause one is by far the longest and most important. It contains eight provisions, including a significant definitional section. Proposed section 182.1 (“PS 182.1”) defines animal as any vertebrate, but for a human. This is different than current legislation, which does not identify the term animal. However, implicit in the current legislation is the assertion that a bird is not an animal. This confusion is corrected by defining an animal as a being with a vertebrate, except for a human.

An improvement of the proposed law over the current law deals with intent. Clause One clarifies the level of intent necessary under the law. Offenses that were once on a standard of willful conduct are now judged by either willful or reckless conduct standards. This in turn expands the scopes of the law to include negligent action instead of merely intentional acts.

PS 182.2(1)(a), like Canada Criminal Code § 446(1)(a), provides animals protection from both third parties and the owner from unnecessary pain, suffering or injury. But, PS 182.2(1)(b)-(c) remove the distinctions in the current §§444-445 between cattle and other animals that provide higher penalties for killing or poisoning the cattle. Unfortunately, the language in PS 182.2(1)(b) has added the somewhat controversial “brutally or viciously” standard to those who kill animals or owners who allow their animals to be killed.

While aboriginal hunting rights are protected under PS 182.6, other groups including slaughterhouses and hunters raised opposition to the “brutally or viciously standard.” What exactly is “brutal” or “vicious?” Bill C-50 would let the courts decide this matter. This, in effect has created perhaps the greatest impediment to the bill’s passage.

PS 182.2(1)(c) provides that it is an offense to kill an animal without lawful excuse. PS 182.2(1)(d) consolidates all the poison clauses (§§ 444(b), 445(b), 446(1)(e)) and updates them due to the technological advances since 1892, including the now common technique of administering medical substances (including poisons) to animals through needles.

One aspect of the amendments that remains consistent with the original law is the increased valuation of commercial animals versus companion animals. The above mentioned proposed sections apply the higher cattle penalties of § 444 to all animals. The current law provides higher penalties in §444(b) for those who kill, maim, wound or injure the cattle of another, than for those who kill, maim, wound or injure any other animal or bird (§445). The new proposed provisions include the tougher indictable penalties of §444(b) with a prison sentence of up to five years, and add in the alternative for offenses punishable through summary conviction a punishment of a fine up to ten thousand dollars and/or up to eighteen months imprisonment (182.2(2)(a)-(b)). These penalties are much stiffer generally than the penalties in the current code (at least with regard to animals that are not cattle).

Despite this different treatment in types of animals, the new amendments outlined n PS 182.3 (1) contain three offenses that concern non-commercial animals. The first is the negligent infliction of unnecessary pain, suffering or injury to an animal. (182.2 contains a similar offense, but with the standard of willfulness or recklessness). The second offense is for owners and custodians of animals who willfully or recklessly abandon an animal or negligently fail to provide “suitable and adequate food, water, air, shelter and care.” The third offense is for the negligent injuring of an animal while in transit. PS 182.3(3)(a)-(b) provide for punishment for PS 182.3(1) violations. Indictable offenses are punishable for imprisonment of not more than two years, and offenses punishable on summary conviction are subject to a fine of five thousand dollars and/or imprisonment of up to six months. While these amendments reflect the concerns initially outlawed in Section 446 et seq., the penalty provision is greatly enhanced.

The amendments also reflect the changing position of animals in society, especially with concern to law enforcement animals. PS 182.7, provides penalties of up to five years for an indictment or ten thousand dollars and/or imprisonment of up to eighteen months for willfully or recklessly poisoning, injuring or killing a law enforcement animal while it is in the line of duty. In addition, the guilty party must pay all reasonable costs associated with killing or injuring the animal.

One of the great improvements made by Bill C-50 over the current provisions is the changing of “willful neglect” (undefined and ostensibly unclear in its meaning) to the negligence standard. In addition, in PS 182.3(2) the statute defines “negligently” for the purposes of the three provisions in 182.3(1) as “departing markedly from the standard of care that a reasonable person would use.”

In addition to the increased penalties, PS 182.4(1)(a) empowers the court to prohibit the accused from “owning, having the custody or control of or residing in the same premises as an animal for any period that the court considers appropriate.” This provision provides a minimum penalty of five years for repeat offenders. The court may also order that the accused pay for care costs for the animal. Finally, PS 182.4(2) provides that those who disobey court orders under PS182.4(1)(a) are guilty by summary conviction to up to six months imprisonment and/or a fine of up to 2,000. [14] Additionally, PS 182.4(2) makes the Canada Criminal Code restitution orders applicable to orders under section 182.4(1)(b).

While at first blush many of the enhanced penalty provisions of the new amendments appear heavy-handed, certain procedural safeguards have been implemented. PS 182.5 provides that the defenses set out in § 429(2) of the Canada Criminal Code apply, when relevant, to Bill C-50. Additionally, PS 182.6 provides that the laws and treaties with aboriginals are not abrogated by this proposal.

While clause one is the heart and soul of Bill C-50, other provisions bear mention. The remaining clauses contain single sentences. Clause two simply provides for deleting in Criminal Code § 264.1(1)(c) the words “or bird.” Section 264.1 currently prohibits threatening to kill or injure an animal or bird that is property of a person. Since the PS 182.1 includes a definition for animal that includes birds (amendment states that an animal is a vertebrate) having “or bird” in the §264.1 is unnecessary.

The final clauses reflect the functional aspects of the new law rather than any further substantive changes. Clause three states that the current provisions (§§444-447) are repealed, and clause four states that the clause will come into force on the date set by the governor in Council.

IV. The “Controversy” Behind Bill C-50

Bill C-50 provides many important refinements of existing law, including defining animal in a scientific way that is readily understandable by scientists, lay people, and the legal profession. Additionally, outdated terminology has been changed by legal terms of art that are understandable by both the legal profession and the lay community. The higher penalties that previously applied only to cattle would apply to all animals . Finally, provisions have been added to protect animals assisting law enforcement personnel.

If Bill C-50 is so much greater than the current animal anti-cruelty legislation, then what is so controversial about Bill C-50? Why has this bill failed, in its different manifestations, five different times over the past six years? First, it is important to understand the process through which a bill is drafted in the Canadian parliament. [15] Generally, a bill goes through a series of readings in the first house. If it passes through these series of readings, then it goes to the Senate and must be passed in the exact form. Upon approval by both houses, the bill is presented for Royal Assent by the Governor General or the Deputy Governor General in a formal ceremony in the legislature. The ruling party has proposed the bill in its differing manifestations over the past six years, the very party that has been vulnerable to no-confidence votes and calls for early elections. What this effectively means is that the bill had to restart from the very first step numerous times because of political maneuvering. Ultimately, this has prevented a vote on this bill’s many manifestations over the past six years. Sadly, just as this bill seemed to be approaching an up or down vote in 2005, the Liberal Government received a no-confidence vote, forcing early elections and killing pending legislation, including Bill C-50. With the Liberal Government’s significant defeat in early 2006, it seems unlikely that the animal cruelty statute will be amended in the near future.

What was so controversial about Bill C-50? Some groups that engage in traditional industries and sports (slaughterhouses, hunting, fishing, etc.) were concerned about why the bill was moving the animal provisions from under the property section of the Criminal Code to a newly created section. Was this an indication of the inauguration of a new classification of animals as being something other than property?

Some of these traditional industries and sporting groups were also concerned about 182.2(1)(b)’s newly created “brutally or viciously” liability standard. What exactly does brutally or viciously mean? Are current slaughterhouse provisions in Canada brutal or vicious? What about hunting for sport and food? Is it brutal to shoot a deer or to trap an animal for its fur? Is all killing brutal by definition?

While these groups may be expressly what they see as legitimate concerns, the true controversy lies not in substance be in politics. Until the amendments get to a point where a true vote can be taken, their terms do little more than to spark debate.

V. The Future of Canadian Animal anti-cruelty Legislation

While Canada would be served well by having implemented the modern and comprehensive Bill C-50, the Bill could have carried most of its concerns without creating a new quasi-category for animals. A vast majority of Canadians were in support of increasing the penalties for those engaged in cruelty to animals. While this bill certainly fills in many of the gaps of the previous language, some feel it also goes too far too fast, bringing it in strong opposition with more traditional groups.

What is wrong with a pragmatic compromising approach? As is evidenced by the 1892 laws, animals are recognized as sentient beings, not to be subjected to unnecessary pain, suffering and death. No laws to date (except by suggestion in some EU laws) give any animal a right to inherent self-interest. The laws simply recognize an ability to experience pain and suffering. If the law already recognized this, why move the categorization of animals from under property to another section? Why not simply expand the current provisions that recognize this, but keep them under the property provisions? This would have weakened opposition to the bill.

Why did the “brutally or viciously” kill standard need to be in the bill when there are several provisions that cover the same acts? For instance, 182.2(1)(a) states that it is an offense to willfully or recklessly inflict unnecessary pain, suffering or injury on an animal. Under 182.2(1)(c), it is an offense to willfully or recklessly kill an animal without lawful excuse. Additionally, under the same provision it is an offense to negligently inflict unnecessary pain, suffering or injury to an animal. Further, there are also supplementary provisions in Bill C-50 to allow a judge to prevent an offender from ever owning, having custody or control of an animal. This duplication of seemingly similar acts did nothing to dispel the bill’s criticism.

The unfortunate repeated failure of Canada ’s proposed animal anti-cruelty amendments are brought in part by an all or nothing approach. If the amendments are to be successful, the bill must be resubmitted with conciliation in mind. For instance, legislators could leave the bill in the property section and eliminate 182.2(1)(b), the inflammatory “brutal and vicious” killing standard. In other words, lawmakers should take into consideration the two key opposition points from the meat and poultry business and from hunting groups if the goal is truly to get the amendments passed. The misfortune in all of this is that current approach evidenced by the current government has resulted in absolutely no progress for animal protection. In the end, all concerned parties, animals and proponents of the measures, lose.

[1] J.D. Candidate, Michigan State University College of Law, 2006; M.A. (Religion), Wake Forest University , 2005; B.A. (Religious Studies), Washington University in Saint Louis , 2000. I wish to thank Rebecca Wisch, Esq., for her wonderful insight and extensive editing which resulted in a more enlightened and easier to read paper.